This article discusses how to prepare for and benefit from a settlement conference; how a settlement conference may differ from ordinary mediation; and related matters. Preparation begins with reading rule NRAP 16. It gives detailed instructions on how to proceed. You might enjoy checking out the Supreme Court's website on the settlement conference procedures.Go to http://nvsupremecourt.us/ccp/settlement/. It also has tips on how to proceed.
The conference is to be held before filing transcripts and briefs. The time for filing such is stayed. The thought process is not. Each party must file a settlement statement stating the relevant facts; the issues on appeal; the arguments supporting the party; the weakest points of the party's position on appeal; a settlement proposal; and anything else that might assist the settlement judge.
Attendance of the client is mandatory, but may be excused for good cause if the attorney has full authority to settle in writing or the client is available by phone. The overwhelming majority of mediators believe the attendance of the client is an enormous help in achieving settlement.
It is anticipated that most settlement judges will schedule one-half day for the initial conference. That period may be extended or additional settlement conferences scheduled, if necessary. Preparation should not be lightly undertaken. The overall settlement rate for the program is 55%.Just as in trials and negotiations the better advocates and the better prepared do better than the poorer ones.
In addition, failure to take Rule 16 cases seriously can result in financial and other penalties as well as the potential for acute embarrassment. Settlement judges are required to report all compliance problems, including failure to participate in good faith, to the Supreme Court.
If you are properly prepared you will get a good reading as to the view of a neutral party on the strengths and weaknesses of the respective parties’ cases. You will also have an opportunity to reshape your arguments for a more effective presentation. Keep in mind, however, that this is not a mock trial. Unlike the situation in trials and negotiations, settlement judges are apt to ask the hard questions directly, pointedly and repeatedly in front of and of the client. They also may offer evaluative opinions unlike many typical mediators. This makes it imperative that you frankly evaluate with your client your potential worst alternative to a negotiated settlement (WATNA). In a judicial settlement conference WATNA will come up. Far better that your client heard it from you first. It is not much fun to have to explain the cost of an appeal, it’s possible downside and your relatively shaky chances to a client, but it is truly no fun to have those matters explained to the client in your presence for the first time.
You will be asked for alternative settlement suggestions. It would be a good idea to have some. There are, of course, cases that cannot be settled. Unfortunately, it is hard to predict which ones those are.(3). This is another way of saying that counsel should not assume that his or her case cannot be settled. Many disputes have emotional, relational, time, and monetary dimensions to name a few. A dispute is seldom only the stated issues or the ostensible legal issues. When preparing, be sure that your client understands the dispute. In settlement discussion be sure that the other side's client understands the dispute. The obstacles to understanding judicial processes are far greater than you might think. The following excerpt illustrates the problem: Why don't disputants understand? In the United States, only 20% of Americans attend any type of college, and only 60%.- make it through high school. Those who prepare television and newspaper ads understand what some mediators and attorneys do not; printed and electronic ads are written at a 7th grade comprehension level.
The London School of Economics and The Wharton School of Business, which have each researched problems of international business communication, suggest that it takes 13 years (high school and 1 year of college) of formal education to meaningfully participate in a business dialogue, and 17.2 (college degree + 1.2 years) years to participate in a basic legal dialogue. However, when critical terms were defined before the dialogue, they found a 47.56%- increase in comprehension for those who fell below the average educational level in a business or legal setting. Be certain before the settlement conference that your client understands the legal terms which will be used.
Below are sample translations of legal terms that may not be understood. These are adapted from SPIDR NEWS, Winter 1997; [Language and Mediation: 19 Simple Definitions to Start Your Mediation Off Right. (Page 18) LEGAL TERMS Issue: Means a question. A question for the judge or jury to answer. Damages: Means dollars or money. "On the issue of damages" means "On the question of how many dollars." Specials: Means hard damages. A bill we can all see as a result of your accident. Like medical bills paid by or for you, or money you had coming in and now do not, like wages. Specials do not include soft damages like mental anguish, pain and suffering, and those types of things. Liability: Means who is at fault or to blame. "On the issue of liability" means "On the question of who is at fault." Venue: The city where the case will be tried by a judge and jury. Trier of Fact: The jury, but occasionally just the judge if you give up your right to a Jury. Causation: What caused the accident? However, there may be a difference between what actually causes it and what legally caused it. Check with your attorney. Negligence: Is a duty to do something. Someone did something wrong or did not do something when they were supposed to. Comparative Negligence: Is there more than one person at fault for the accident? Is the person suing partly at fault? Unavoidable Accident: Neither party is legally wrong because what or who caused the accident can never be hauled into court. Like the rain. Product I.D.: Did the person you are suing make the thing?
MEDIATION TERMS Mediation: Helps people settle their case if they want to. If they don't they can go to court. Mediator: Is not a judge, he/she cannot tell us what to do. Caucus: Splitting up. MEDICAL TERMS Traumatic: Something hit and injured your body as opposed to being injured by disease. Degenerative: Your body is simply wearing out and getting older. Happens to everyone. Congenital: A problem or something you were born with, like a birth mark or having to wear glasses for weak eyes. Pre-existing: An injury that happened before this accident. Soft Tissue: No broken bones.
Couple these words with the habit of being brief and simple. Throughout the settlement conference, use short statements and plain words to summarize what is said.
Few cases are precedential. This means that most cases correctly analyzed have predictable outcomes. If you are appealing from desperation, to placate the client or to buy time, be prepared to hear about it up close and personal and to have your client closely quizzed on the topic. Prepare your remarks to appeal to the other side. They settle. The settlement judge isn't going to settle with anyone. This is not his dispute.
If you are the victim of a poorly thought out appeal, remember this is your chance to address the other party. Not the other party's lawyer. THE OTHER PARTY.
You, or your client may be able for the first time to reach the other side one on one. Don't waste this opportunity. You should have a good idea as to the other side's motives by now. If not, it is time you did. Do you have anything to offer some one in a losing cause. Sympathy? A small bone? An opportunity for future business? A regret that the matter did not go well? Closure?
If the other side is suffering from emotional loss, sometimes civil treatment will help. Restoring the loser's self esteem and dignity may help. This is a problem-solving situation, not a moot court competition. All of the elements of human interaction are available, not just the law books. A loser may not need a win, he may just need less of a loss, whether that be monetary or some other item.
Analyze the situation from the other side's point of view. "The ability to see the situation as the other side sees it, as difficult as it may be, is one of the most important skills a negotiator can possess. It is not enough to know that they see things differently. If you want to influence them, you also need to understand empathetically the power of their point of view and to feel the emotional force with which they believe in it." Why Should Parties Settle? -- Parties "own" the solution to their dispute. -- There is a greater opportunity to be heard to "speak one's piece" than when appearing in a formal hearing. -- No outside force is pronouncing one side a "winner" and the other a "loser" (yes, for some this is a disadvantage). -- Satisfaction with the process has been shown to be high. -- Creative options for settlement are encouraged and given a more thorough exploration than is often possible in a formal court appearance. -- Better relations are preserved between the parties; especially important if there will be ongoing contact between them.
Studies show clients like the mediation process and like to settle. Participating in a settlement conference is usually considered a good experience by the participants, even if it is not successful. You want to be perceived a contributor to that good experience, not an obstacle. Your client's business or family affairs may be severely impacted by delay. This is true of the practical or business elements: in addition delay in resolving legal conflicts takes its emotional toll as well. Is your client prepared for a four year delay? Is his or her family?
Never underestimate the value or closure or of peace of mind from the end of a dispute.
